Winterhalder v. Burggraf Restoration, Inc.
2011 OK CIV APP 38
| Okla. Civ. App. | 2011Background
- Davises and six others sue Burggraf Restoration for breach of contract, negligence, fraud and home repair fraud.
- Burggraf answers with defenses asserting the Davises’ current claims arise from the same contract and are barred.
- Parties execute a Stipulation outlining facts about a fire-damage repair contract, early 2002 work, and a settlement in the first small claims case.
- First small claims case SC-2002-17400 began Oct. 2002; trial repeatedly continued; settlement reached Nov. 2002 but not reduced to writing.
- Davises allegedly paid nothing as agreed after settlement; Burggraf’s second small claims action SC-2004-4971 was filed and later dismissed with prejudice; current suit follows.
- District court later held the Davises’ claims barred by §1758 and res judicata; Davises appeal. The appellate court reverses and remands for settlement terms to be determined.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Davises’ current claims are barred by the settlement from the first small claims action | Davises did not sign a release; settlement terms unclear | Settlement intended release of related claims | Remand to determine release terms; not conclusively barred |
| Whether §1758 barred the Davises’ claims due to counterclaim timing | No timely counterclaim required due to continuances | Strict §1758 timing applies | §1758 did not bar after continuances; not triggered in this record |
| Whether §2013(A) compulsory counterclaim bar applies | Dismissal before trial does not bar claims | Compulsory counterclaims barred unless action dismissed not on merits | Not barred because first suit dismissal was not on the merits |
| Whether the Davises’ current claims are barred by claim preclusion | No final judgment; no operative merits ruling | Dismissal with prejudice in second suit precludes | Remand; need settlement terms and further proceedings; not precluded on record |
Key Cases Cited
- Carter v. Gullett, 602 P.2d 640 (Okla. 1979) (strict 72-hour counterclaim rule applied in small claims)
- Interstate Brands Corp. v. Stephens, 615 P.2d 297 (Okla. 1980) (transfer/remedies timing; interpret §1757 §1758 flexibly in small claims)
- Whitehorse v. Johnson, 156 P.3d 41 (Okla. 2007) (settlement contracts; contract formation governs release terms)
- Robinson v. Texhoma Limestone, Inc., 100 P.3d 673 (Okla. 2004) (compulsory counterclaim bar requires judgment on merits; preclusion disabled when dismissed before trial)
- Boettcher Oil & Gas Co. v. Westmoland, 189 Okla. 110 (Okla. 1941) (dismissal with prejudice generally bars further action on same subject; depends on record)
- Turner v. Fleming, 130 P. 551 (Okla. 1913) (retraction; retraxit doctrine; effect of voluntary dismissals on later actions)
- Perfect Inv., Inc. v. Underwriters at Lloyd's, London, 782 P.2d 932 (Okla. 1989) (recognizes retraxit concept; preclusion considerations)